Tort Law notes:
The purposes of tort law include:
A)Compensatory function: Devenish Nutrition ltd case, Arden LJ said “the aim of the law of tort is
to compensate for loss su ered.” In greggv scott, Baroness Hale said “tort law is not criminal law.
The criminal law is there to punish and deter those who do not behave as they should. Tort law is
there to compensate those who have been wronged, although some wrongs are actionable
whether or not the claimant has been damaged. Compensatory function has a “dual” function i.e
punishing defendant as it has a punitive and detterant function as well if its su ciently large sum.
Types of compensatory damages:
A)compensatory damages
B)restitutionary damages
C)user damages
D)aggravated damages
E)nominal damages
B) Detterent function: Tort law accomodates an award of exemplary damages in some
circumstances where defendants conduct deserves to be punished because it is egregious and
worthy of condemnation
C)Striking a balance between competing rights:To allocate responsibility for the
obligations which one person owes to another and to protect the rights that one person is
permitted to assert against another.
D)Public vindication:the fact if proving that what is believed to be wrong or false is proved to be
correct or true.
E)A “gap- ller” in the common law: remedies provided in areas where common law doesnt
provide them.
F) A vehicle for the apportionment of risk:Obligations falling on claimant and defendant are
imposed by law in tort law. Two factors are given particular regard:
1) which of C/D is better equipped to insure against the risks associated with Ds acts or. (1
omissions?
Which of C/D is better positioned to minimise or prevent C’s injury or loss? (2
G)An alternative to statutory compensation: where statutory compensation can not fully (3
recover the claimant to his condition before the tort was committed but it can be served as a
top-up. For e.g a victim of a violent crime may su er an unrecoverable injury but a
compensatory scheme may show public sympathy and support.
Obtaining monetary compensation
Multiple causes of action can be claimed by Claimant in respect of the same grievance
from di erent legal avenues however claimant will only recover the money he is entitled to
once.
Concurrent liability in contract and Tort
In contract, parties can allocate risks between them and the agreements are noted orally
and written. In tort, the law allocates the risk and damages and to determine these the
courts scrutinise written and implied terms.
The distinction between contract and tort comes down to four di erent matters:
A) the measure of damages: damages matter as they defer upon the cause of action (A
claimed by the claimant. Lord scott in rees v darlington said “claimant is entitled to the
bene t of the contract and entitled,therefore,to be placed in the position, so far as money
can do so, in which he would have been if the contractual obligation had been properly
performed. But where the claim is in tort, claimant is entitled to be placed in the position in
which he would have been if the tortious act, had not been committed”.
B)the fact of the damage:proving damage is necessary in some cases such as (B
negligence,”it is trite law that damage is the gist of action” per chester v afshar. Thus, to
gain damages in tort the action must be proven so claimants might prefer remedies in
contract as nominal damages can be awarded for breach on contract as it is the very
defect relating to a building,chattel or service.
fi ff fi ff ff ff ffi
, C)Limitation periods:limitation period in contract begins once the contract is breached (C
however limitation period begins in tort from the moment damages are incurrd which might
occur much later than the breach itsself. Read “beginning and end of liability”.
D) The standard of care:in contract law, defendant might undertake a contract in which he (D
may not create a defective piece of product and any defect will be a breach of contract on
ds part unless D has limited liability of that defect by another clause. However in tort law
and tort of negligence, D has a duty to use reasonable care and skill to avoid causing
damage to c as a result of defective product but does not gurantee to produce something
which is free of defects otherwise negligence would impose an obligation of perfection. So
its in Cs best interest to rely upon contractual duty as a defect is easier to prove than
proving damages under duty of care owed by D.
As a general principle, if C had concurrent remedies available both in tort and contract,the
contractual test of remoteness applies.
The permissibility of concurrent remedies was approved by lord go in merrett syndicates “C,
who has available to him concurrent remedies in contract and tort,may choose that remedy which
appears to him to be the most advantageous.”
Important precondition that should be there is that Defendant must have assumed a responsibility
to avoid the particular damage of which claimant complains.As seen in most cases, professionals
who can be assumed to be defendants in most cases have concurrent duties on them both under
contractual obligations and having duties of care for their claimants under tort law as these
professionals are architects,bankers,doctors,advisors etc.
In some cases where a responsibility is not assumed,duty of care doesnt apply and thus c can not
claim damages under it.
Exceptions:
The principle of concurrent liability will not apply in exceptional circumstances where:
1)any tortious duty is so inconsistent with the contract so as to be excluded. (1
2) a group of contracts governs the relevant obligations (2
The contract may preclude concurrent duties between C and D i.e a term could clearly exclude
tortious liability. This depends on how contract is worded.
Also, a groups contractual arrangements????
THE THREE COST RULES\;PG22-23.
To prove the cause of action in negligence, claimant must prove four requirements i.e:
1)D owed C a duty of care causing C the type of injury of which he complains.
2)D breached the duty of care by falling below the standard of reasonable care which the law
demands.
3)Ds breach caused the damage complained of by C.
4)the damage complained of by C was not too remote at law to be recoverable.
Duty Of Care (Chapter 2)
A duty of care is a legal duty imposed on D,by law,to exercise reasonable
care and/or skill to avoid the risk of injury to C. Whether a duty of care is
owed by D,on a set of given facts,is a question of law.
This preposition was given in bournhill v young and contains several points
of signi cance:
1)a duty is imposed upon D-it is not a legal obligation which D agrees to or
can contract out of.
2)the duty is to exercise reasonable carre,not to achieve perfection or a
guranteed outcome.
fi ff
,3)A duty of care is owed by D to either C or a class of persons of whom C
was one it is not usually imposed upon D towards the world at large in
respect of any one act or omission of negligence (although there are
exceptions)
As an overaching framework of analysis, three approaches are followed to
assess whether a duty of care is owed by D to C in novel scenarios:
1)The Caparo tripartite test\
2)The Hedley Byrne ‘voluntary assumption of responsibility/reliance’ test;
3)The incremental test
1)The Caparo test(from case caparo industries v dickman) ingredients:
A)Harm to C was actually foreseen,or reasonably foreseeable,by D.
B)the requisite proximity existed between C and D
C)It is fair,just and reasonable to impose a duty of care)
2)The assumption of responsibility test:
Applies where D,possessed of special skill,undertook to apply that skill for
the assistance of C,who relied upon that skill,and requires:
A)An assumption of responsibility by D towards C to conduct himself with
reasonable care and/or skill; and
B) a reciprocal reliance by C upon D in so conducting himself.
3)The incremental test:
Any new or novel duty of care scenarios should develop incrementally,by
close analogy with established categories,’rather than by a massive
extension of a prima facie duty of care restrained only by inde nable
considerations which ought to negative,or to reduce or limit the scope of the
duty or the class of person to whom it is owed in other words,courts should
hug the coastline of established duty of care.
Assuming the existence of a duty of care:
Where C sustains personal injury or property damage,then if C can align his
relationship with D with one of the recognised categories in which a duty of
care has, traditionally,arisen as a matter of law,there is no need for C to
prove the individual ingredients of the duty of care tests.
1)Caparo TEST: Reasonable foreseeability of harm:
D can not be liable in negligence for the unforeseen or unforeseeable.No
reasonable D would take any precautionary steps or modify his conduct to
avoid a risk that he does not know,or foresee,could occur and the law does
not expect of him either.
fi
, 3 stages namely a)duty of care stage where D might have anticipated some
type of harm as reasonably foreseeable,b)breach stage which is somewhat
narrower i.e should D have taken some precautionary steps and should have
foreseen this damage. And c)remoteness stage is the narrowest i.e ‘was the
kind or type of harm su ered by C reasonably foreseeable?’
A)Breach stage: Defendant must have either actually foreseen or reasonably
foreseen the risk that his failure to exercise reasonable care and/or skill might
cause some type of harm to C individually or to a class of persons of whom
C was one.A risk is reasonably foreseeable if it is a ‘real risk’ (i.e have more
than a real possibility)
i)Reasonably foreseeable? Wide concept with no set de nition.First limb of
caparos test is quite easy to prove and on only a number of occassions has
this test not been proved.
Example where the claimant is unforeseeable: a person shopping at a
supermarket drops his shopping bag,breaking some eggs.One of the eggs is
rotten and a passer-by,C,su ers an allergic reaction from the sulphur dioxide
emanating from the egg,when no physical injury could be foreseen by the
dropped shipping bag.C’s injury may plausibly be unforeseeable under the
Caparo test.
ii)Individually or as one of a class? If C and D never had any prior relationship
before the allegedly negligent event happened, it is su cient if C was
foreseeable as one of a class of persons who could be in danger or harm by
Ds activity or omission. Example is bolton v stone, where miss stone sued
the bolton cricket club for her property or person being hit by a cricket ball
as her residence was near the bolton cricket ground.it was held that a duty
of care was owed to C but there was no breach as the chances of the ball
hitting C or her property was very small and the cricket club was justi ed in
disregarding it.
Even if the class of persons is the whole world, that does not preclude the
test of foreseeability from being met.If a driver is driving rashly,the class of
people that are at risk are numerous,however the duty of care crystallises or
solidi es to the one who gets injured.
S2.6 Although reasonable foreseeability is an objective test,it is the particular
D whose breach caused the injury to C to whom that test must be applied.
The particular D who ‘possesses a signi cant degree of knowledge’ as to
how some injury may manifest to C as a result of Ds act or omission,the test
of reasonable foreseeability will,inevitably,be easier to satisfy.
S2.7 Reasonable foreseeabiloty of injury to C is a necessary ,but not
su cient,condition to prove a duty of care.akk ingredients of the Caparo test
must be met.
Although all limbs of the caparo test should be satis ed to prove a duty of
are,Lord Reed in robinson said ‘reasonable foreseeable risk of injury was
ffi fi
ff ff fi fi ffifi fi
The purposes of tort law include:
A)Compensatory function: Devenish Nutrition ltd case, Arden LJ said “the aim of the law of tort is
to compensate for loss su ered.” In greggv scott, Baroness Hale said “tort law is not criminal law.
The criminal law is there to punish and deter those who do not behave as they should. Tort law is
there to compensate those who have been wronged, although some wrongs are actionable
whether or not the claimant has been damaged. Compensatory function has a “dual” function i.e
punishing defendant as it has a punitive and detterant function as well if its su ciently large sum.
Types of compensatory damages:
A)compensatory damages
B)restitutionary damages
C)user damages
D)aggravated damages
E)nominal damages
B) Detterent function: Tort law accomodates an award of exemplary damages in some
circumstances where defendants conduct deserves to be punished because it is egregious and
worthy of condemnation
C)Striking a balance between competing rights:To allocate responsibility for the
obligations which one person owes to another and to protect the rights that one person is
permitted to assert against another.
D)Public vindication:the fact if proving that what is believed to be wrong or false is proved to be
correct or true.
E)A “gap- ller” in the common law: remedies provided in areas where common law doesnt
provide them.
F) A vehicle for the apportionment of risk:Obligations falling on claimant and defendant are
imposed by law in tort law. Two factors are given particular regard:
1) which of C/D is better equipped to insure against the risks associated with Ds acts or. (1
omissions?
Which of C/D is better positioned to minimise or prevent C’s injury or loss? (2
G)An alternative to statutory compensation: where statutory compensation can not fully (3
recover the claimant to his condition before the tort was committed but it can be served as a
top-up. For e.g a victim of a violent crime may su er an unrecoverable injury but a
compensatory scheme may show public sympathy and support.
Obtaining monetary compensation
Multiple causes of action can be claimed by Claimant in respect of the same grievance
from di erent legal avenues however claimant will only recover the money he is entitled to
once.
Concurrent liability in contract and Tort
In contract, parties can allocate risks between them and the agreements are noted orally
and written. In tort, the law allocates the risk and damages and to determine these the
courts scrutinise written and implied terms.
The distinction between contract and tort comes down to four di erent matters:
A) the measure of damages: damages matter as they defer upon the cause of action (A
claimed by the claimant. Lord scott in rees v darlington said “claimant is entitled to the
bene t of the contract and entitled,therefore,to be placed in the position, so far as money
can do so, in which he would have been if the contractual obligation had been properly
performed. But where the claim is in tort, claimant is entitled to be placed in the position in
which he would have been if the tortious act, had not been committed”.
B)the fact of the damage:proving damage is necessary in some cases such as (B
negligence,”it is trite law that damage is the gist of action” per chester v afshar. Thus, to
gain damages in tort the action must be proven so claimants might prefer remedies in
contract as nominal damages can be awarded for breach on contract as it is the very
defect relating to a building,chattel or service.
fi ff fi ff ff ff ffi
, C)Limitation periods:limitation period in contract begins once the contract is breached (C
however limitation period begins in tort from the moment damages are incurrd which might
occur much later than the breach itsself. Read “beginning and end of liability”.
D) The standard of care:in contract law, defendant might undertake a contract in which he (D
may not create a defective piece of product and any defect will be a breach of contract on
ds part unless D has limited liability of that defect by another clause. However in tort law
and tort of negligence, D has a duty to use reasonable care and skill to avoid causing
damage to c as a result of defective product but does not gurantee to produce something
which is free of defects otherwise negligence would impose an obligation of perfection. So
its in Cs best interest to rely upon contractual duty as a defect is easier to prove than
proving damages under duty of care owed by D.
As a general principle, if C had concurrent remedies available both in tort and contract,the
contractual test of remoteness applies.
The permissibility of concurrent remedies was approved by lord go in merrett syndicates “C,
who has available to him concurrent remedies in contract and tort,may choose that remedy which
appears to him to be the most advantageous.”
Important precondition that should be there is that Defendant must have assumed a responsibility
to avoid the particular damage of which claimant complains.As seen in most cases, professionals
who can be assumed to be defendants in most cases have concurrent duties on them both under
contractual obligations and having duties of care for their claimants under tort law as these
professionals are architects,bankers,doctors,advisors etc.
In some cases where a responsibility is not assumed,duty of care doesnt apply and thus c can not
claim damages under it.
Exceptions:
The principle of concurrent liability will not apply in exceptional circumstances where:
1)any tortious duty is so inconsistent with the contract so as to be excluded. (1
2) a group of contracts governs the relevant obligations (2
The contract may preclude concurrent duties between C and D i.e a term could clearly exclude
tortious liability. This depends on how contract is worded.
Also, a groups contractual arrangements????
THE THREE COST RULES\;PG22-23.
To prove the cause of action in negligence, claimant must prove four requirements i.e:
1)D owed C a duty of care causing C the type of injury of which he complains.
2)D breached the duty of care by falling below the standard of reasonable care which the law
demands.
3)Ds breach caused the damage complained of by C.
4)the damage complained of by C was not too remote at law to be recoverable.
Duty Of Care (Chapter 2)
A duty of care is a legal duty imposed on D,by law,to exercise reasonable
care and/or skill to avoid the risk of injury to C. Whether a duty of care is
owed by D,on a set of given facts,is a question of law.
This preposition was given in bournhill v young and contains several points
of signi cance:
1)a duty is imposed upon D-it is not a legal obligation which D agrees to or
can contract out of.
2)the duty is to exercise reasonable carre,not to achieve perfection or a
guranteed outcome.
fi ff
,3)A duty of care is owed by D to either C or a class of persons of whom C
was one it is not usually imposed upon D towards the world at large in
respect of any one act or omission of negligence (although there are
exceptions)
As an overaching framework of analysis, three approaches are followed to
assess whether a duty of care is owed by D to C in novel scenarios:
1)The Caparo tripartite test\
2)The Hedley Byrne ‘voluntary assumption of responsibility/reliance’ test;
3)The incremental test
1)The Caparo test(from case caparo industries v dickman) ingredients:
A)Harm to C was actually foreseen,or reasonably foreseeable,by D.
B)the requisite proximity existed between C and D
C)It is fair,just and reasonable to impose a duty of care)
2)The assumption of responsibility test:
Applies where D,possessed of special skill,undertook to apply that skill for
the assistance of C,who relied upon that skill,and requires:
A)An assumption of responsibility by D towards C to conduct himself with
reasonable care and/or skill; and
B) a reciprocal reliance by C upon D in so conducting himself.
3)The incremental test:
Any new or novel duty of care scenarios should develop incrementally,by
close analogy with established categories,’rather than by a massive
extension of a prima facie duty of care restrained only by inde nable
considerations which ought to negative,or to reduce or limit the scope of the
duty or the class of person to whom it is owed in other words,courts should
hug the coastline of established duty of care.
Assuming the existence of a duty of care:
Where C sustains personal injury or property damage,then if C can align his
relationship with D with one of the recognised categories in which a duty of
care has, traditionally,arisen as a matter of law,there is no need for C to
prove the individual ingredients of the duty of care tests.
1)Caparo TEST: Reasonable foreseeability of harm:
D can not be liable in negligence for the unforeseen or unforeseeable.No
reasonable D would take any precautionary steps or modify his conduct to
avoid a risk that he does not know,or foresee,could occur and the law does
not expect of him either.
fi
, 3 stages namely a)duty of care stage where D might have anticipated some
type of harm as reasonably foreseeable,b)breach stage which is somewhat
narrower i.e should D have taken some precautionary steps and should have
foreseen this damage. And c)remoteness stage is the narrowest i.e ‘was the
kind or type of harm su ered by C reasonably foreseeable?’
A)Breach stage: Defendant must have either actually foreseen or reasonably
foreseen the risk that his failure to exercise reasonable care and/or skill might
cause some type of harm to C individually or to a class of persons of whom
C was one.A risk is reasonably foreseeable if it is a ‘real risk’ (i.e have more
than a real possibility)
i)Reasonably foreseeable? Wide concept with no set de nition.First limb of
caparos test is quite easy to prove and on only a number of occassions has
this test not been proved.
Example where the claimant is unforeseeable: a person shopping at a
supermarket drops his shopping bag,breaking some eggs.One of the eggs is
rotten and a passer-by,C,su ers an allergic reaction from the sulphur dioxide
emanating from the egg,when no physical injury could be foreseen by the
dropped shipping bag.C’s injury may plausibly be unforeseeable under the
Caparo test.
ii)Individually or as one of a class? If C and D never had any prior relationship
before the allegedly negligent event happened, it is su cient if C was
foreseeable as one of a class of persons who could be in danger or harm by
Ds activity or omission. Example is bolton v stone, where miss stone sued
the bolton cricket club for her property or person being hit by a cricket ball
as her residence was near the bolton cricket ground.it was held that a duty
of care was owed to C but there was no breach as the chances of the ball
hitting C or her property was very small and the cricket club was justi ed in
disregarding it.
Even if the class of persons is the whole world, that does not preclude the
test of foreseeability from being met.If a driver is driving rashly,the class of
people that are at risk are numerous,however the duty of care crystallises or
solidi es to the one who gets injured.
S2.6 Although reasonable foreseeability is an objective test,it is the particular
D whose breach caused the injury to C to whom that test must be applied.
The particular D who ‘possesses a signi cant degree of knowledge’ as to
how some injury may manifest to C as a result of Ds act or omission,the test
of reasonable foreseeability will,inevitably,be easier to satisfy.
S2.7 Reasonable foreseeabiloty of injury to C is a necessary ,but not
su cient,condition to prove a duty of care.akk ingredients of the Caparo test
must be met.
Although all limbs of the caparo test should be satis ed to prove a duty of
are,Lord Reed in robinson said ‘reasonable foreseeable risk of injury was
ffi fi
ff ff fi fi ffifi fi
